Guidance

Operational note: considering children’s individual protection needs

Published 30 July 2021

To (and to be cascaded by):

Asylum caseworkers, to be cascaded by SCWs and team leaders.

cc (for information):

Asylum decisions policy team

Considering children’s individual protection needs

This note is for decision makers processing and deciding asylum claims including those who conduct interviews.

Background

On 19 March 2021 the UK Supreme Court in G (Appellant) v G (Respondent) [2021] UKSC 9 found that a child who is named as a dependant on an asylum claim can and should (generally) be understood to have made a claim for asylum in their own right.

This finding applies to all new claims as well as outstanding claims for asylum.

To implement this judgment, we are introducing a new ‘Family Asylum Claim’. Under a Family Asylum Claim, although the main claimant and any children will each be a claimant in their own right, the claim will be dealt with in a single consideration. This is on the basis that the protection needs of each claimant would be the same as those established by the main claimant. The Family Asylum Claim will operate in a similar way to the current policy on dependants, but with additional steps to ensure any protection needs of the child are particularised. However, where we establish that a child has separate protection needs to that of the main claimant then the child’s claim will be considered separately and cannot be part of a Family Asylum Claim.

This instruction sets out the procedures to implement the new Family Asylum Claim process for all claims where a child is named as a dependant on an asylum claim at each of the different stages of the determination process. We will be publishing detailed guidance to support this note shortly.

A: New claims made from 2 August 2021 where a child is named as a dependant on an asylum claim

From the 2 August 2021 the screening interview and the Preliminary Interview Questionnaire (’PIQ’) will include questions for the main claimant about whether any children linked to the claim have separate protection needs. The API on ‘Asylum Screening and Routing’ is being updated to reflect this change and a separate operational note issued for individuals involved in the screening process.

Where information from the screening interview and / or the PIQ indicates that:

the protection needs of any child are the same as that of the main claimant, the claim must be considered as a Family Asylum Claim and the process outlined at B (Claims made prior to 2 August 2021 where the claimant has not been interviewed) and D (Serving decisions in Family Claims) below should be followed; or

the child has a different basis for claiming asylum to that of the main claimant, the child’s claim should be considered separately in accordance with the API on ‘Children’s asylum claims’; or

the child has no protection need at all, they should be considered as a dependant under the existing API on Dependants.

B: Claims made prior to 2 August 2021 where there is a dependant child on the claim and the main claimant has not been interviewed.

Decision makers should continue to follow the information set out in the published guidance on Asylum interviews.

However, where a dependent child is included on a claim, decision makers must also ask the main claimant in their substantive asylum interview whether any child has individual protection needs separate to and/or in addition to those of the parent. This is in addition to the questions that will be asked at the screening interview from 2 August 2021 and in the PIQ. Decision makers, where possible, should follow this proforma question:

Your dependent children will be considered to have made an asylum claim in their own right unless you say they have no protection needs. We understand that in many cases the basis of a child’s claim for asylum is the same as the main claimant. We can therefore assess the child’s claim for asylum based on the information you will provide to us. In other cases, a child will have additional or different protection needs to those of the main claimant. It is important for us to understand whether a child faces any risks which are different to the main claimant so we can properly consider their claim.

In respect of each of your children who are dependent on your claim:

Does the child face a risk on return to their country of origin?

If yes, do you believe the risk to be same risk that you face, or are there additional or different risks?

Decision makers must confirm in the interview record that the question has been asked and record the answers given.

The interview will lead to one of the following outcomes:

1. Where the main claimant is able to explain the circumstances on behalf of the family as a whole (much as they do currently), and confirms that the child does not have separate protection needs, the claim can be treated as a Family Asylum Claim.

2. Where the interview reveals that the child has different or additional protection needs to that of the main claimant, these must be explored in the interview. You must then consider whether the child should be treated as an accompanied child and their claim considered separately in accordance with the API on ‘Children’s asylum claims’. You must refer to your Senior Caseworker.

C: Claims made prior to 2 August 2021 where there is a dependent child named on the claim, the main claimant has been interviewed but no decision has been served.

On 2 August 2021 we will send a letter (the ‘child dependant’s letter’) to the main claimant on any claim where a child has been named as a dependant. The child dependant’s letter will ask the main claimant to confirm whether the grounds on which they are claiming also apply to each or any child, and whether the child has any different or additional protection needs. The child dependant’s letter will require the main claimant to respond within 20 working days of the date of the child dependant’s letter was sent.

No decisions must be served in these cases until it is clear from CID / Atlas that the child dependant’s letter has been sent and the 20 working day time period has elapsed.

The child dependant’s letter will lead to one of the following outcomes:

1. Where the main claimant confirms that the child has no separate protection needs, the claim can be determined as a Family Asylum Claim and a decision served in line with D (Serving decisions in Family Asylum Claims) below.

2. Where the main claimant confirms that the child has separate protection needs then these will need to be considered separately to the Family Asylum Claim. You must then consider whether the child should be treated as an accompanied child and their claim considered separately in accordance with the API on ‘Children’s asylum claims’. You must refer to your Senior Caseworker.

3. Where no response is received, we should assume that the child’s protection needs mirror that of the main claimant and the claim can be determined as a Family Asylum Claim and a decision served in line with D (Serving decisions in Family Asylum Claims) below.

D: Serving decisions in Family Asylum Claims

This section applies to all claims as set out in A, B and C above where it is established that there is a Family Asylum Claim.

Each claimant named in a Family Asylum Claim will receive a separate decision letter. Refugee status should only be granted to those who are considered to be in need of protection (leave in line can be granted, as appropriate, where there are dependants on a Family Asylum Claim who do not have a protection need).

If there is an issue that cannot be resolved by SCWs, it should be escalated to the Asylum Chief Casework team, depending on the nature of the question.

Any queries about this instruction can be sent to: Asylum Decisions Policy